PHILADELPHIA – The National Football League is seeking summary judgment in a lawsuit brought against both itself and ESPN that alleged safety violations were committed during the construction of a temporary stage, leading a New Jersey man to fall 30 feet and suffer severe bodily injuries.
Plaintiff Brian Crowthers first filed suit on Jan. 9, 2019 in the Philadelphia County Court of Common Pleas against Mountain Productions, Inc., Mountain Production Services, Inc., ESPN and the NFL.
Crowthers is a New Jersey man who allegedly suffered head trauma, broken ribs and a ruptured spleen after a 30-foot fall, while working on the temporary amphitheater set up for the 2017 NFL Draft in Philadelphia.
At the time, Crowthers was employed by Tri-State Staging as a stagehand, and claims the fall he suffered while building the temporary amphitheater in front of the Philadelphia Museum of Art was caused by Mountain Production Services’ “improper fall protection and prevention” measures.
The amphitheater was built in front of the famed “Rocky” steps at the museum.
The lawsuit alleged negligence from both the NFL and ESPN, saying they failed to hire a competent outfit to build the stage, and that fall safety precautions for the project were not implemented or largely ignored in an effort to make sure that construction of the amphitheater was complete.
Following the April 22, 2017 accident, the lawsuit stated the Occupational Safety and Health Administration cited Mountain Production Services for several violations of scaffold safety and fall protection.
Mountain Productions has been cited on previous occasions by OSHA for fall protection and injury recording and reporting violations, the lawsuit added.
“Prior to the date of the accident, defendant, ESPN, knew or should have known of the hazardous and unsafe work practices that existed. Defendant ESPN breached the duties that it owed to plaintiff,” suit said.
Citing diversity of jurisdiction, lawyers for the NFL removed the case to federal court on Feb. 13, 2019 – but Crowthers asked that it be sent back to Philadelphia state court two days later on Feb. 15, 2019, arguing the removal was “procedurally defective.”
“The NFL’s notice of removal did not indicate that ESPN consented, which makes the removal procedurally defective pursuant to the “Rule of Unanimity,” the motion to remand stated.
“Moreover, the ‘Forum Defendant Rule’ makes removal improper because defendants, Mountain Productions, Inc. and Mountain Production Services, Inc., are citizens of Pennsylvania, the state where the action was brought.”
Therefore, Crowthers argued the “Forum Defendant Rule” precluded federal diversity jurisdiction in this matter.
U.S. District Court Judge Mitchell S. Goldberg concurred with Crowthers’ view on the Rule of Unanimity, and thus, did not need to rule on the jurisdictional question. Goldberg continued that the email correspondence that supposedly communicated ESPN’s consent, shared with the Court on Feb. 27, 2019, was untimely.
Goldberg added even if the email were included with the original notice of removal or had been submitted within the proper 30-day removal window, that message alone would not be enough to communicate consent to remove the litigation.
On July 22, 2019, Goldberg’s order sent the litigation back to its forum of origin, the Philadelphia County Court of Common Pleas.
UPDATE
After two further years of litigation, the NFL filed a motion for summary judgment on July 28, arguing that it did not owe a safety duty to Crowthers, an employee of an independent contractor.
“Crowthers commenced this action seeking recovery for bodily injuries sustained when he fell during the construction of an amphitheater that was to be used during the 2017 NFL draft. The NFL was in possession of the entire site of the 2017 NFL draft by permission with the City of Philadelphia in accordance with the license agreement attached hereto and marked exhibit “B”. The NFL hired C3 Presents, LLC to produce certain aspects of its 2017 draft and fan festival,” the motion stated.
“The NFL/C3 Presents contract provides in paragraph 1(b): “C3 will perform all Services to cause the Event to be produced in accordance with all applicable laws, rules and regulations. The NFL will have general approval and direction rights over the Event and C3’s Services. C3 shall be responsible for all payments to third party vendors, suppliers, and subcontractors engaged by C3 and to all employees or personnel of C3 and for compliance with all applicable laws, rules and regulations with respect thereto, including wage and hour laws.” The NFL/C3 Presents contract provides in paragraph 1(c): “C3 will use best efforts in performance of its services, consistent with industry standards and subject to the Approved Budget. C3 will hire all labor and purchase all materials necessary to perform its Services.” The NFL/C3 Presents contract provides in paragraph 10: “Compliance with Laws. Both parties shall comply with all laws, statues [sic], ordinances, rules, regulations and requirements of all governmental agencies and regulatory bodies having jurisdiction with respect to the Event.”
According to the NFL, the construction of the amphitheater from which Crowthers fell was a part of the activities C3 Presents contracted to perform pursuant to its contract with the NFL – and furthermore, that the NFL was not involved in the construction of the amphitheater from which Crowthers fell and at the time of his fall, Crowthers, was working at heights without proper fall protection.
Crowthers’ counsel responded to the NFL’s motion for summary judgment on Aug. 26, countering that it abrogated its responsibility to provide safe premises for Crowthers to work in.
“In the City/NFL Agreement, the NFL accepted certain responsibilities. Most importantly, the NFL accepted responsibility to ‘use, or caused the premises to be used, in compliance with all rules, regulations and guidelines as the City…has established. At deposition, the NFL, through its corporate designee, admitted that this provision required the NFL to comply with Philadelphia Construction Code. In the City/NFL Agreement, the NFL agreed that it would take ‘all reasonable safety precautions,” the response stated.
“In the City/NFL Agreement, the NFL further agreed that it “shall comply with…all federal, state, city, local laws and ordinances…applicable to safety, health and welfare. At deposition, the NFL, through its corporate designee, admitted that it understood the above-referenced terms of the City/NFL contract as requiring the NFL to comply with OSHA regulation.”
Counsel for Crowthers denied that the NFL delegated away the safety responsibilities it assumed in its later executed City/NFL Agreement.
Crowthers is seeking sums in excess of $50,000 from each defendant as well as punitive damages due to alleged negligence that led to his injuries, some of which are permanent, the lawsuit states.
The plaintiff is represented by Brian E. Fritz and Kevin M. Durkan of Fritz & Bianculli, in Philadelphia.
The defendants are represented by Glenn M. Campbell and Robert G. Devine Jr. of Post & Schell, Stephen Bruderle, Steven H. Eichler and Jonathan D. Herbst of Margolis Edelstein and Drew L. Mallick of O’Hagan Meyer, also all in Philadelphia.
Philadelphia County Court of Common Pleas case 190100318
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com